Marijuana Law, Policy & Reform

"Convergence and Divergence of Alcohol and Marijuana Regulation in a Federalist System Post-COVID-19"

The title of thi spost is the title of this new paper now available via SSRN authored by H. Justin Pace and Eden Punch. Here is its abstract:

After the passage of the Twenty-first Amendment, the regulation of alcohol in the U.S. largely takes place at the state level.  While marijuana has been illegal at the federal level since 1937, states have been liberalizing marijuana laws at the state level since 1996 (when California legalized medical marijuana) by legalizing marijuana for medical or adult use.  Alcohol regulation, which was effectively reset in all states when alcohol was legalized at the federal level, is marked by divergence — significant variation in alcohol laws across states.  Conversely, marijuana regulation, which has slowly spread across the U.S. state-by-state over the last 28 years, is marked by convergence — new marijuana reforms increasingly resemble other reforms.

One of us has previously published scholarship arguing that the difference can be explained by a combination of interest group politics, path dependence, and, most importantly, a temporal effect.  Alcohol and marijuana regulation in the U.S. experienced an exogenous shock with the COVID-19 pandemic, which resulted in significant changes to alcohol and marijuana regulation across the nation.  This paper examines convergence and divergence in alcohol and marijuana regulation from 2020 to the present day, revisiting and reaffirming that previous theory and also applying a federalism lens to explain alcohol and marijuana regulation and predict future developments.

"Drug Crimes: The Case for Abolition"

The title of this post is the title of this notable new paper authored by my Ohio State colleague Sean Hill now available via SSRN. Here is its abstract:

Nonwhite communities experience higher rates of arrest, prosecution, and incarceration than white communities for drug offenses, and these disparities have persisted even in the wake of decriminalization and legalization. Although a diverse array of political stakeholders increasingly agree that drug policies should be reformed, they are nearly unanimous in their opposition to abolition.  While select drug crimes may be worthy of reduced punishment or conversion into civil offenses, these stakeholders contend that the abolition of criminal institutions will inevitably jeopardize public safety.

This Article challenges the widespread presumption that drug law and policy correlates with the protection of the public.  Drug crimes are, instead, an essential vehicle for the subordination of nonwhite people and for the misallocation of resources across racial groups.  Part I of the article contests the presumed correlation between illicit drugs and violence and illuminates how drug criminalization erodes individual and collective safety.  Part II addresses how drug policy sustains white and American hegemony, respectively, by legitimating racist ideologies and by justifying force against marginalized people both in and outside of the country's borders.  Finally, Part III explains how abolition represents a viable path away from the harms of prohibitionist policies.

Marking new era (and new generation) substituting marijuana for alcohol?

When I first started paying attention to marijuana reforms and its potential impacts, I recall a number of public health experts suggesting that greater use of marijuana could end up a public health benefit if marijuana was used as a substitute for alcohol, but greater use would likely be a public health problem if used as a supplement to alcohol.  Against that backdrop, all these new press stories about trends in the start of 2024 seemed worth flagging:

From Bloomberg, "Weed Sales Boom in Dry January as People Drink Less"

From Forbes, "Almost Half Of Those Doing Dry January Use Cannabis — Can It Help You Quit Alcohol?"

From Fortune, "Gen Z’s buyers’ strike on alcohol turns ‘Dry January’ into skyhigh new year"

From Kiplinger, "Dry January Can Boost Weed Sales: This Week in Cannabis Investing"

From Modern Retail, "Cannabis beverage brands capitalized on Dry January interest"

From the New York Times, "What Does Being Sober Mean Today? For Many, Not Full Abstinence."

From Vice, "The Rise of 'Sober But', the Dry January Where You Still Do Drugs"

Should the public health community applaud shifts from alcohol to marijuana (and support cannabis beverages)?

The question in the title of this post is prompted by this interesting recent Forbes piece headlined "Cannabis Taking A Larger Share Of Alcohol Industry Amid Concern Over Calories And Hangovers." Here are excerpts:

The growing concern over calories and hangovers is driving more millennials to replace alcohol with cannabis in their social life — a trend that pushes investors to increasingly eye the infused beverage industry as an opportunity.

A recent Monitoring the Future research found US millennials drink far less alcohol than previous generations: The percentage of college students who drink alcohol daily declined from 6.5% in 1980 to 2.2% in 2017.  By contrast, there was a significant increase in daily marijuana use among young US adults, especially during 2019, the research further revealed, resonating with the gradual legalization of medical and recreational marijuana across the country....

Financial services company Cowen predicts the sales of recreational cannabis in the US will increase more than 700% from $6 billion in 2016 to $50 billion in 2026, prompting beverage companies of all sizes, such as Ceria, to tap into the space to grow their profits.  Keith Villa, the creator of Blue Moon Brewing Company, launched Ceria in 2018 – a company produces a cannabis-infused and non-alcoholic craft beer brand Grainwave.  Breweries that manufactures similar products include Colorado-based New Belgium Brewing and Dad & Dude’s Breweria, as well as SweetWater Brewing Co. of Georgia.  Several mainstream CPG heavyweights, including Coca-Cola, PepsiCo and Mondelēz, also reportedly consider launching infused food products, but nothing so far has materialized.

These existing infused beverages in the market, however, do not appeal widely to consumers who are already frequent cannabis users, at least according to Jake Bullock, co-founder of cannabis-infused social tonic startup Cann.  Cann produces cannabis-infused beverage products that are low in calories.  “As a result, the mainstream consumer is not entering the market as quickly,” he wrote me via email, stressing the cannabis industry has lagged the growth projections many analysts and companies have made.  “It is clear that cannabis is here to stay and will only continue to penetrate existing markets and new states over time,” Bullock added....

The other element that prevents more people from exploring THC-added food is their confusion with CBD products.  The other co-founder of Cann, Luke Anderson, notes many consumers who are curious about cannabis turn to CBD to explore the plant, but often time, they don’t know the difference between the cannabinoids.  “This has created a lot of confusion in the market, with people thinking they would 'feel something' after trying a CBD-only product and not being able to tell what was physiologically happening versus a placebo effect,” he said.

“This experience may have discouraged people from exploring micro doses of THC, which are quite safe but give you a very palpable buzz.  While CBD products play in a crowded health and wellness segment of grocery aisles.”

Anderson said his company has aimed to reshape the alcohol industry with a small amount of THC in each can since it was first launched about a year ago.  Cann prides itself in balancing 2 mg of sativa-dominant hybrid THC and 4mg of CBD to provide a “sessionable experience” without high calories and the hangover.

When the modern marijuana reform movement got started, I was often in the habit of saying that it would likely be a "public health win" if a lot of alcohol use was replaced by marijuana use. This article suggest this is already happening, and I presume a growing cannabis beverage market would enhance the number of folks who might substitute cannabis for alcohol. But, as the question in this post title reveals, I am not knowledgeable enough about the public health literature to say for sure that these trends ought to be applauded.

"100 Years Since Prohibition: Legacy for the War on Drugs"

The title of this post is the title of a talk by Harvard University Professor Lisa McGirr being hosted tomorrow by the The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center. Here is the event description:

In her latest book, The War on Alcohol: Prohibition and the Rise of the American State, Lisa McGirr revises our understanding of the Prohibition years.  The 1920s were not just about gin joints and Jazz; McGirr emphasizes, instead, the serious and long-lasting legacies of the ban on alcohol.  McGirr charts how the ban built the edifice of the federal penal state, fueled the Ku Klux Klan’s power, reshaped politics, and served as a dress rehearsal for the much larger and longer-lasting war on drugs.

For those in the central Ohio area, it is not too late to register for this event at this link.

"An Argument Against Regulating Cannabis Like Alcohol"

The title of this post is the title of this paper recently posted to SSRN authored by Jonathan R. Elsner, who just recently graduated from The Ohio State University Moritz College of Law. This paper is now the fifth of an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first four papers in this series are linked below.)  Here is this latest paper's abstract:

As cannabis prohibition comes to an end in the United States, federal and state governments must decide how to regulate its cultivation, distribution, and sales.  One particular option, supported by some alcohol wholesalers and distributors, is a regulatory system based on that of the alcohol industry, whereby the government mandates a distribution system consisting of three mutually exclusive tiers: manufacturers, distributors, and retailers.  This paper, however, argues against creating a regulatory framework for the nascent adult-use cannabis industry modeled after the government-mandated, three-tier distribution system established for alcohol post-Prohibition as it inherently stifles innovation and quality.

Essentially, the three-tier distribution system creates an unnatural layer of government-mandated middlemen, distributors and wholesalers, who perpetuate market inefficiencies that benefit themselves, along with large corporations, to the detriment of consumers and small-to-medium-sized businesses.  The beer industry, now dominated by two breweries offering largely undifferentiated products, provides a cautionary tale regarding the effects of the three-tier distribution system to those developing the regulatory structure for the adult-use cannabis industry.

Prior student papers in this series:

• "The Canna(business) of Higher Education"
• "Marijuana Banking in New York and Around the US: 'Swim at Your Own Risk'"
• "Intellectual Property Survey: Cannabis Plant Types, Methods of Extraction, IP Protection, and One Patent That Could Ruin It All"
• "Marijuana in the Workplace: Distinguishing Between On-Duty and Off-Duty Consumption"

Examining state medical marijuana programs and historic links to alcohol prohibition

A set of students in my Marijuana Law, Policy & Reform seminar are taking a deep dive into state medical marijuana programs this coming week.  Here is how they explain their planned presentation and links to some background reading:

For our presentation, we analyzed each state’s medical marijuana programs to determine ease of accessibility for patients.  We studied each state’s medical marijuana program and compared variables such as cost of registration, reciprocity, approved conditions, and many others.  Through our research, we discovered that there is wide spectrum of accessibility among the states which have legalized medical marijuana.  More specifically, we concluded that the top 5 easiest states to obtain a medical marijuana card are California, Hawaii, Illinois, Michigan, and Nevada.  Additionally, we concluded that the hardest states (among those which have legalized it) to access medical marijuana are Florida, Louisiana, Missouri, and Utah.

Next, we sought to determine if there was any correlation between the states that had easier/hardest accessibility with when those states ratified and abolished prohibition.  Our hypothesis was that the states with the laxer medical marijuana laws would be the ones that repealed prohibition sooner than those with the harsher medical marijuana laws.  Generally, we found that that states that ratified the 21st Amendment sooner seemed to have laxer medical marijuana laws and the states with the harsher laws repealed prohibition later on.  Also, side note, Oklahoma didn’t even repeal prohibition until 1959!

Background Sources

• ProCon list of 33 Legal Medical Marijuana States and DC

• 2018 Annual Report on Medical Marijuana Programs prepared by Americans for Safe Access

• Americans for Safe Access list of Legal Information By State & Federal Law

• NORML resources on state medical marijuana laws

• High Times article "How Many Dispensaries Are In Each State?"

Not too late to register for "The Prohibition Era and Policing" at Ohio State on March 4

As detailed at this link (where folks can register), the Drug Enforcement & Policy Center at The Ohio State University Moritz College of Law has a very exciting event scheduled for tomorrow afternoon (Monday, March 4, 2019).  The event is titled "The Prohibition Era and Policing"  and here are the basics:

The legal precedents created during Prohibition have lingered, leaving search-and-seizure law much better defined than limits on police use of force, interrogation practices, or eyewitness identification protocols.  Please join us as Professor Wesley M. Oliver discusses his latest book, The Prohibition Era and Policing: A Legacy of Misregulation, followed by a discussion with:

• Honorable Maureen O'Connor, Chief Justice of the State of Ohio
• Honorable Jeffrey S. Sutton, United States Court of Appeals for the Sixth Circuit
• Dr. Andrea Headley, John Glenn College of Public Affairs, The Ohio State University

Folks are welcome to attend (and to bring others) even without having registered, it is helpful for planning purposes for folks to register here if they know they are planning to attend.

"If Weed Is Medicine, So Is Budweiser: Legalize marijuana, but don’t pretend it’s therapeutic."

The title of this post is the headline of this provocative Wall Street Journal commentary authored by Peter Bach, "a pulmonary physician at Memorial Sloan Kettering Cancer Center in New York [who] directs the Center for Health Policy and Outcomes."  Here are excerpts:

Ten states and the District of Columbia have legalized recreational marijuana use, and another eight look likely to do so in 2019.  I favor the move but am troubled by the gateway to it: All these jurisdictions first passed laws permitting the use of “medical” marijuana.  We should set the record straight, lest young people (and old ones) think marijuana is good for you because it is wrongly labeled a medication.

Actual medicines have research behind them, enumerating their benefits, characterizing their harms, and ensuring the former supersedes the latter.  Marijuana doesn’t.  It’s a toxin, not a medicine.  It impairs judgment and driving ability.  It increases the risk of psychosis and schizophrenia.  Smoking it damages the respiratory tract.  A 2017 report from the National Academy of Medicine called the evidence for these harms “substantial.”

Claims that marijuana relieves pain may be true.  But the clinical studies that have been done compare it with a placebo, not even a pain reliever like ibuprofen.  That’s not the type of rigorous evaluation we pursue for medications.  What’s more, every intoxicant would pass that sort of test because you don’t experience pain as acutely when you are high.  If weed is a pain reliever, so is Budweiser.

Some advocates say marijuana is better than opiates for pain.  Yet while opiates have risks, there are no studies comparing them to marijuana, and untested claims in medicine don’t get the benefit of the doubt.  Testing such a hypothesis often disproves it.

Decades ago, several studies suggested that marijuana might relieve nausea in chemotherapy patients.  But again most compared it with a placebo, while a few compared it with older nausea treatments not used today. None were very convincing. More important, no study has compared marijuana to today’s Neurokinin-1 antagonists. While such treatments are sometimes ineffective, that shortcoming doesn’t impart efficacy on marijuana either.

In writing medical-marijuana laws, state lawmakers and initiative authors have gone well beyond pain and nausea control, lauding the plant as an effective treatment for a long list of conditions, including hepatitis, Alzheimer’s and Parkinson’s.  Beyond the lack of data, what these conditions have in common isn’t biology, but modern medicine’s failure to treat them satisfactorily.  Heartbreaking as that is, marijuana isn’t the answer....

Marijuana belongs in the same category as alcohol and tobacco — harmful products that adults can choose to enjoy....  Decades passed before we took on smoking and drinking with education, labeling and other forms of regulation.  But it worked, and deaths from lung cancer, heart disease and alcohol-associated accidents are in sharp decline. We need this same approach with marijuana.  Acknowledging that it is not a medicine is a necessary first step.

I think it valuable and important to highlight ways in which many of the forms of the plant cannabis, at least right now, is not comparable to the kinds of medicines we access at a drug store.  But it is also important to highlight ways in which medical marijuana laws do not treat marijuana as comparable to other medicines. For starters, public and private health insurance systems general do not help cover the cost of marijuana used medicinally and there are all sorts of distinctive limits on the whos and hows of medical marijuana access.  In many ways, all modern medical marijuana laws are still just elaborate variations on the original law created by California in 1996, which simply created a limited exception to marijuana prohibition for those eager to try marijuana for various therapeutic purposes. Had marijuana never been criminalized, there would have been no need to seek exceptions from prohibition for medical uses (and, it bear recalling, there was much discussion and special laws around alcohol access for medical use during the Prohibition era).

"Life, Liberty, (and the Pursuit of Happiness): Medical Marijuana Regulation in Historical Context"

The title of this post is the title of this great new book chapter authored by Lewis Grossman now available via SSRN.  Here is its abstract:

The struggle for access to medical marijuana differs from most other battles for therapeutic freedom in American history because marijuana also has a popular, though controversial, nontherapeutic use — delivery of a recreational high.  After considering struggles over the medical use of alcohol during prohibition as a precedent, this chapter relates the history of medical marijuana use and regulation in the United States.  The bulk of the chapter focuses on the medical marijuana movement from the 1970s to present.  This campaign has been one of the prime examples of a successful extrajudicial social movement for freedom of therapeutic choice.  With the exception of a single promising decision in 1975, courts have uniformly rejected arguments for medical marijuana access.  But the 1996 passage of Proposition 215 in California triggered a tremendous wave of state measures legalizing medical cannabis, as well as a dramatic change in American attitudes about the issue. 

The chapter recounts this history in light of the special legal, political, and rhetorical challenges medical cannabis advocates have faced.  First, many officials have opposed the legalization of medical marijuana, regardless of whether it offers therapeutic benefits, because of the public health harms and moral degradation they associate with the use of pot.  Second, marijuana’s designation as a Schedule I substance under the Controlled Substances Act of 1970, and the DEA’s rejection of multiple citizen petitions to reclassify it, has placed extremely high obstacles in the way of researchers interested in scientifically assessing marijuana’s therapeutic efficacy.  Third, federal government policies have lagged behind public preference and state law.  Finally, medical marijuana supporters have had to negotiate an invaluable but fraught relationship with advocates for comprehensive marijuana legalization.  The perspectives and goals of these two groups have overlapped and conflicted in fascinating and unexpected ways.

"Why Alcohol Is Still the Most Dangerous Drug"

The title of this post is the headline of this lengthy new article in Governing magazine.  Interestingly, the article does not once mention marijuana, but it is still a sobering read against the backdrop of the often-stated refrain of marijuana reformers that they want marijuana regulated like alcohol.  I recommend the entire piece, and here are excerpts from the start of the lengthy piece:

Most Americans have a general sense that drunken driving isn’t as bad a problem as it was a generation ago. But few realize how much those numbers changed in a relatively short time.  When the federal government started counting alcohol-impaired traffic deaths in 1982, there were more than 21,000 a year. By 2011, the death toll was down by 53 percent. States had raised the legal drinking age to 21 and adopted a common rule that a blood alcohol concentration (BAC) of .08 meant “too drunk to drive.”  Many states also mandated the installation of interlock devices to prevent those with a history of drunken driving from turning on their ignition unless they were sober. Those laws, coupled with education and prevention campaigns, helped reduce drunk driving deaths to fewer than 10,000 in 2011.

But recently the trend has stalled. The total number of alcohol-impaired traffic fatalities actually rose in both 2015 and 2016. “Drunk driving has been around since the automobile was invented and it’s still the biggest killer on the highway,” says J.T. Griffin, the chief government affairs officer for Mothers Against Drunk Driving (MADD). Indeed, alcohol causes more traffic deaths per year than either speeding or driving without a seatbelt....

Up to now, no state has imposed a limit of .05, but that’s about to change. Utah will go to .05 in December. In the past year, Delaware, Hawaii, New York and Washington state have also considered legislation to lower the limit. “It will change the conversation from, ‘If you have been drinking too much, you shouldn’t drive,’ to, ‘If you’ve been drinking, you shouldn’t drive,’” says Utah Rep. Norm Thurston, who sponsored the .05 legislation. The new message -- that driving shouldn’t occur after even moderate drinking -- “is probably what it should have been all along,” he says.

American alcohol policy is in a curious state of flux. On one hand, states and localities continue to tax alcoholic beverages not only to raise revenue but also to educate the public about the risks associated with drinking. On the other hand, states are passing laws that make alcohol easier to purchase by permitting sales on Sundays, in movie theaters and at grocery outlets. In December, Congress cut federal alcohol excise taxes to the tune of $4.2 billion over two years. The reduction is expected to bring down prices and increase consumption.

The national conversation around addiction has been dominated in recent years by opioids. Certainly, the rapid rise in opioid overdoses, which claimed 42,000 lives in 2016 alone, is a pressing issue for states across the country.  The White House has declared a national public health emergency over the epidemic, and governments everywhere are marshalling efforts to combat the crisis.

But the fact is that alcohol kills roughly 88,000 Americans each year, more than double the number of opioid deaths.  Almost half of alcohol fatalities come from chronic health problems attributed to excessive alcohol consumption, such as liver cirrhosis, breast cancer and heart disease.  Those alcohol-induced deaths are on the rise. Excluding certain acute causes, such as homicides and traffic fatalities, the rate of alcohol-induced deaths increased by about 47 percent between 1999 and 2015.

Public health specialists say it’s time for a broader national dialogue about substance misuse, one that includes alcohol.  “There continues to be a [reluctance to accept that] alcohol is an addictive substance because it’s legal, because it’s widely used, because people believe that unless it’s a drunk driving accident you don’t really die from it,” says Phyllis Randall, chair of the Loudoun County, Va., Board of Supervisors and a former mental health therapist who worked for 15 years treating offenders with substance abuse problems in an adult detention center.

New York City Bar Association issues report supporting proposed New York marijuana legalization law

The New York City Bar Association's Committee on Drugs and the Law released this notable 11-page report today (also available here), which starts and ends this way:

The New York City Bar Association’s Committee on Drugs and the Law (“the Committee”) respectfully submits this report examining and approving the legalization, regulation, and taxation of marijuana for adult non-medical use in New York State and providing support for A.3506-B/S.3040-B (“the Legislation”), which would create a system for the production, distribution, and adult non-medical use of marijuana.  We also recommend, if feasible, minor revisions to the Legislation, as noted herein.  The Committee also takes this opportunity to express its support for the policy of ending criminalization of marijuana, and for taxing and responsible regulation of marijuana...

The Committee on Drugs and the Law supports this Legislation to create a legal, regulated market for adult non–medical use of marijuana in New York State.  New York was the first state to turn away from alcohol Prohibition in 1923, and the Committee hopes the state will show similar leadership on this analogous issue, whether through this Legislation or another vehicle.  Marijuana prohibition is a costly and ineffective policy that has not succeeded in eliminating marijuana use. The failed policy has devastated families and communities, eroded respect for the law, and strained police-citizen relations.  Accordingly, the Committee applauds this Legislation and urges its adoption. Further, regardless of the vehicle, the Committee supports state and federal legislative and policy changes that reduce or eliminate criminalization of marijuana and that permit, tax, and regulate the production, distribution, and adult use of marijuana.

I think it somewhat amusing (and I suppose a bit depressing) that the conclusion of this document notes that New York "turn[ed] away from alcohol Prohibition" only three years after federal Prohibition became effective in January 1920. We are now 48 years since the federal Controlled Substances Act of 1970 gave marijuana the prohibition treatment and New York has still not yet gotten around to turning away.

According to Gallup, "Most in U.S. Say Consuming Alcohol, Marijuana Morally OK"

This news release reports on an interesting new Gallup survey concerning American moral perspectives. Here are excerpts:

Large majorities of Americans believe that using substances like alcohol and marijuana are morally permissible. Specifically, 78% say drinking alcohol is morally acceptable and 65% say smoking marijuana is.

Alcohol and marijuana rank near the top of the list of practices Americans consider morally acceptable. Only birth control, at 91%, gets a higher percentage sanctioning it than drinking alcohol does. Smoking marijuana trails birth control, drinking alcohol and divorce (76%), but is on par with widely accepted acts including gambling, sex between an unmarried man and woman, gay or lesbian relations, stem cell research, and having a baby outside of marriage.

Americans are least likely to regard married men and women having an affair, cloning humans, polygamy and suicide as morally OK. Their opinions are most closely divided on morality of abortion -- 43% believe it is morally acceptable and 48% believe it is not.

Gallup's trends on many of these items date back to 2001. On most, Americans have adopted more permissive views over time. Presumably, this also applies to the new item on smoking marijuana, given the surge over the past two decades in the percentage who say that smoking the drug should be legal. In fact, the 64% who last fall said marijuana should be legal nearly matches the 65% who say smoking it is morally acceptable.

Majorities of key subgroups of Americans regard both drinking alcohol and smoking marijuana as morally acceptable, but highly religious Americans, as measured by the frequency with which they attend church, are less likely to do so. Whereas 88% of those who seldom or never attend religious services find drinking alcohol to be morally acceptable, 60% of those who attend weekly hold that view. And while three-quarters of non-attenders say smoking marijuana is OK, less than half of regular churchgoers, 41%, agree.

Other subgroup differences, including those by gender, age, race and political ideology, appear to reflect differences in church attendance among those groups. For example, nonwhites, women, older Americans and conservatives are more likely to attend church but less likely to say smoking marijuana and drinking alcohol are OK.

In nearly every key subgroup, a greater percentage say drinking alcohol is morally acceptable than says the same about smoking marijuana. Young adults, ideological liberals and moderates are notable exceptions, as these three groups are about equally likely to find the two practices morally acceptable. In contrast to liberals and moderates, ideological conservatives are far more likely to view drinking alcohol (75%) than smoking marijuana (47%) as acceptable moral behavior.

Most Americans do not object on moral grounds to people drinking alcohol or smoking marijuana. Of the two, they are more likely to see drinking alcohol as an acceptable behavior, perhaps because it is legal in all states while smoking marijuana is not. Some states have recently legalized marijuana and many others are considering doing so, perhaps removing some of the stigma associated with the drug. But with roughly two-thirds of the public saying marijuana use is morally acceptable, it seems there will not be sufficient opposition to thwart attempts to make it legal.

"How will cannabis legalization affect alcohol consumption?"

The question in the title of this post is the headline of this notable new commentary authored by Beau Kilmer and Rosanna Smart.  Like many thoughtful commentaries in this arena, the authored highlight that a seemingly simple question does not have a simple answer.  Here are excerpts:

How will legalization affect alcohol consumption?  Will drinking go down because people substitute cannabis for alcohol, or will drinking go up because cannabis and alcohol complement each other?  These questions have important implications for the health consequences of legalization, and for tax revenues.  Unfortunately, we don’t have the answers, yet.

A 2015 RAND Corporation study about cannabis legalization for the state of Vermont concluded that the evidence was mixed about whether cannabis and alcohol were substitutes or complemented each other.  A 2016 University of Washington literature review about changing cannabis polices and alcohol use concluded the relationship was complex.

Much research has relied on evidence of how laws that increase access to medical cannabis affect alcohol use.  The findings are mixed, possibly because the studies examine different age groups, measures of alcohol consumption and time periods.  The alcohol-cannabis relationship may differ across population subgroups — teens may treat these substances differently than adults. Also, some studies consider only effects on whether people drink, but not effects on how often or how much they drink.

Different studies also examine different time periods, and the laws have been changing over time.  Early state laws (such as the medical cannabis legislation California passed in 1996) tend to allow broader qualifying patient conditions, legal home cultivation and less oversight of dispensaries.  Differences in policies may lead to different effects on cannabis use, and possibly alcohol use. And the laws’ impact may evolve over time as the market expands or as federal enforcement shifts.

A recent working paper out of the University of Connecticut and Georgia State University has received a fair bit of attention as the latest in this series of attempts to shed light on the issue of whether alcohol and cannabis are substitutes or complements based on evidence from medical cannabis laws.  The authors examined changes in alcohol sales at grocery and convenience stores and other outlets.  They found that cannabis and alcohol are strong substitutes, with medical cannabis implementation being associated with a 15 percent reduction in monthly alcohol sales.

That is a surprisingly large effect, equivalent to what we would predict if the price of alcohol increased on the order of 30 percent.  The effect seems especially large considering that during the study period of 2006 to 2015, the newer state medical cannabis programs that drive the main result were more restrictive and had low participation rates, typically involving less than 1 percent of the population.  Of course, these medical laws could have effects that reach beyond the registered patient population if they made it easier and cheaper for non-patients to access cannabis, or if the laws caused the public to change its attitudes about cannabis and alcohol use more broadly.  Much more needs to be learned about what’s driving the results in this working paper.

Even if a consensus developed about the effect of medical cannabis laws on alcohol use, it would be unwise to simply assume that the same relationship applies to legalizing cannabis sales and advertising for recreational purposes....

These questions about legalization and alcohol consumption will not be resolved anytime soon.  In the meantime, California’s policymakers are making decisions about whether to license stores and lounges, and if so, where and how many.  They would be wise to build flexibility into their regulatory systems and not lock into decisions they may regret as they gain more information.

Examining "The Temperance Movement and Its Relevance on Today’s Marijuana Policy"

My students know that I strongly believe legal and social histories are critical topics for anyone and everyone interested in any aspect of criminal justice reform. (I always find astute the William Faulkner quote: "The past is never dead. It's not even past.") Consequently, I am especially excited that one of my students in my Marijuana Law, Policy & Reform seminar is making his presentations this week on "The Temperance Movement and Its Relevance on Today’s Marijuana Policy." Here are some of the major sources that the student working on this topic has provided for class consideration:

Daniel Okrent, Last Call: The Rise and Fall of Prohibition

Jack S. Blocker, Did Prohibition Really Work? Alcohol Prohibition as a Public Health Innovation

Harry G. Levine & Craig Reinarman, Lessons from Alcohol Policy for Drug Policy

David F. Musto, The American Experience with Stimulants and Opiates (previous class material that everyone already read)

"Helping Settle the Marijuana and Alcohol Debate: Evidence from Scanner Data"

The title of this post is the title of this intriguing new empirical article authored by Michele Baggio, Alberto Chong and Sungoh Kwon now available via SSRN. Here is the abstract (with the key finding emphasized):

We use data on purchases of alcoholic beverages in grocery, convenience, drug, or mass distribution stores in US counties for 2006-2015 to study the link between medical marijuana laws and alcohol consumption and focus on settling the debate between the substitutability or complementarity between marijuana and alcohol. To do this we exploit the differences in the timing of the of marijuana laws among states and find that these two substances are substitutes. Counties located in MML states reduced monthly alcohol sales by 15 percent. Our findings are robust to border counties analysis, a placebo effective dates for MMLs in the treated states, and falsification tests using sales of pens and pencils.

Are all opponents of marijuana reform ultimately suspicious and critical of capitalism and free markets?

The question in the title of this post came to my mind as I started heading this morning the great book I first flagged here at my sentencing blog: Harvard historian Lisa McGirr's The War on Alcohol: Prohibition and the Rise of the American State.  The start of the book highlights how many early alcohol Prohibitionist were much more troubled by and focused on the "liquor trade" and "liquor trafficking" rather than just individuals drinking.  

I see, of course, a huge parallel in this sense to the leading modern anti-marijuana-reform group, Smart Approaches to Marijuana (SAM), which repeatedly claims that its advocacy is not driven by support for blanket marijuana prohibition enforced by criminal sanctions, but rather is just concerned about the creation of a legal "Big Marijuana" industry.  As SAM explains here at its website: 

People often ask us what our biggest fear of legalization is.  The answer is simple: Big Pot....

The tobacco and alcohol industries follow similar patterns while hawking their legal, addictive substances. And we know how that story ends: money-hungry industries, targeting the vulnerable, will stop at nothing to increase addiction and profit. Why on earth would we want to repeat that debacle with cannabis?

I bring this up because I have long said and long believed that my affinity for and support of marijuana reform is part of a "conservative" commitment not only to personal liberty but also to capitalism and free markets. Though I fully understand and respect concerns about the long-term political and practical impact of "Big Marijuana" (and/or Big Pharma and/or Big Oil and/or Big Google), I still firmly believe the long-term political and practical impact of Big Government is and should be more worrisome at least to those who are fans of capitalism and free markets.  Ergo, I think it is fair to at least suggest that all opponents of marijuana reform (and even a good number of marijuana reform supporters) are likely fundamentally suspicious and critical of capitalism and free markets.

"Is Big Marijuana Inevitable?"

The question in the title of this post is the headline of this notable New Republic piece authored by lawprof Ryan Stoa, which answers the questionwith a "no" and gets started this way (with links from the original):

In November, voters in as many as 12 states will see a marijuana legalization initiative on their ballots. Marijuana is already legal for recreational use in Alaska, Colorado, Oregon, Washington and Washington, D.C. Another 25 states have legalized medical marijuana. The era of marijuana prohibition is rapidly coming to a close.

Unfortunately, lawmakers lack easy answers to tough questions facing the marijuana industry.  Legalization presents challenges on a number of fronts, including distribution, taxation, consumption, security and public health.

In a recent article, I argue that the agricultural sector of the marijuana industry also presents a number of challenges.  One paramount question looms over the rest: Will marijuana agriculture become consolidated, with “Big Marijuana” companies producing vast quantities of indistinct marijuana?  Or, will small-scale farmers thrive by producing unique and local marijuana strains?

My research shows that Big Marijuana is not inevitable.  On the contrary, a local, sustainable, small-scale farming future is entirely within reach.

 

Two great new Brookings papers on the varied forces really shaping marijuana reform

Regular readers perhaps growing bored of hearing me sing the praises of the work being done by the The Brookings Institution on the legal, political and social realities surrounding modern marijuana reform.   But two great new Brookings papers (along with this live event about the papers) ensures that I will be continuing to talk about the must-read materials the folks there are continuing to produce.   Here are links to the two papers and the summaries provided by Brookings:

Worry about bad marijuana — not Big Marijuana by John Hudak and Jonathan Rauch

Many critics and proponents of marijuana legalization alike have voiced concerns about the potential emergence of Big Marijuana, a corporate lobby akin to Big Tobacco that recklessly pursues profits and wields sufficient clout to shape regulation to its liking.

Although marijuana remains illegal under federal law, medical and/or recreational marijuana is now legal in more than two dozen states. As the federal government has largely tolerated state legalization, corporate capital and muscle have begun moving in on these new state markets. Such commercialization raises a new set of concerns about how industry dynamics may impact consumer behavior and potentially incur social costs.

In their new paper, “Worry about bad marijuana—not Big Marijuana,” John Hudak and Jonathan Rauch argue against alarmism. In analyzing the likely implications of the corporatization of marijuana, they conclude the following:

The marijuana industry will remain a diverse one even as large corporations emerge. The Big Marijuana rubric is more misleading than helpful as a guide to policy because it oversimplifies and stereotypes what is in reality a continuum of business scales and structures.

The marijuana industry is very unlikely to transform into something that looks like Big Tobacco during its notorious heyday. It is more likely that a commercial and regulatory model would look like the one governing alcohol, which is regulated primarily at the state level, combines mandatory with voluntary measures to police industry conduct, does a credible job of preventing antisocial and abusive commercial behavior, and has proven stable over time and broadly acceptable to the public and the industry.

Intelligently regulated and managed, Big Marijuana can be part of the solution. Corporatization, though not without its hazards, has considerable upsides. It brings advantages in terms of public accountability and regulatory compliance, product safety and reliability, market stability, and business professionalism.

Policy should concern itself with harmful practices, not with industry structure, and it should begin with a presumption of neutrality on issues of corporate size and market structure. Attempts to block corporatization are likely to backfire or fail. For policymakers, the concern should be bad marijuana, not big marijuana.

Bootleggers, Baptists, bureaucrats, and bongs: How special interests will shape marijuana legalization by Jonathan Rauch and Philip Wallach

Where there are markets, regulations, and money, special interests and self-serving behavior will not be far away. So argue Philip Wallach and Jonathan Rauch in this new paper that examines how special interests are likely to shape marijuana legalization and regulation in the United States.

Why did legalization of marijuana break through in the face of what had long been overwhelming interest-group resistance? In a post-disruption world, how might key social and bureaucratic actors reorganize and reassert themselves? As legalization ushers in a “new normal” of marijuana-related regulation and lobbying, what kinds of pitfalls and opportunities lie ahead? In this paper, Wallach and Rauch address those questions through the prism of what political economists often call the theory of public choice—the study of how interest groups and bureaucratic incentives influence policy outcomes. Their conclusions include:

For many years, the marijuana-policy debate was dominated by an “iron triangle” of anti-legalization interests: moralists and public-health advocates who believe marijuana use is wrong or harmful; commercial and gray-market interests with stakes in drug treatment and medical marijuana; and law-enforcement and quasi-governmental entities whose budgets and missions are sustained by the war on drugs. Those interests’ combined firepower stunted change even as public support for marijuana prohibition softened.

To make possible the wholesale disruption that has happened with marijuana legalization, public opinion change was necessary, but it was not sufficient. Also required was the disruption of the iron triangle. That was accomplished in the late 2000s through a shrewdly crafted campaign of “asymmetric warfare” that aimed money and argumentation at the incumbent coalition’s weakest points. In particular, reformers shifted the public’s focus from harms of marijuana use to harms of marijuana criminalization.

The rise of commercial marijuana interests and a potentially controversial “marijuana lobby” may impede legalization’s momentum as its opponents change the subject once again, from harms of criminalization to harms of corporate predation.

The present disrupted regulatory environment is unlikely to last. Old prohibitionist interests are discombobulated and new commercial-marijuana interests are still getting organized, giving legalizing states a degree of regulatory freedom which is exceptional but probably not durable. Over time, multiple interests will coalesce and colonize the regulatory process.

Despite widely touted concern that one or more disproportionately powerful players will dominate the regulatory system, regulatory incoherence should be a greater concern than regulatory capture. As policymakers increasingly need to navigate complex and conflicting interest-group politics, the result is at least as likely to be overregulation and misregulation as it is to be systematic underregulation.

Looking closely at the history of marijuana propaganda

As students in my semester-long OSU Moritz College of Law seminar on marijuana laws and reform continue assembling readings on particular topics in preparation for an in-class presentation/discussion, this week we have a student taking a deep dive into marijuana propaganda past and present.  Here are links to assembled resources and his summaries:

"Reefer Madness: Mid-Century Anti-Marijuana Propaganda In Movies And Books"

This article provides a good timeline of early Marijuana propaganda and identifies some of the common themes underlying public marijuana education through the 1950s.  It also discusses the themes of racism underlying early marijuana advertising.

"From the Devil’s Lettuce to the Dropout Drug: The Evolution of Reefer Madness Propaganda"

Identifying the changing themes of government propaganda over the years.  Beginning with violent crime, shifting to laziness, health concerns, gateway drugs, and eventually focusing on youth access to marijuana in the modern day.  This article showcases the ways that government sponsored marijuana education has changed over the years as public perception of the drug also changes.

"In Debate Over Legalizing Marijuana, Disagreement Over Drug’s Dangers"

A Pew Research study showcasing attitudes towards marijuana based on age. A correlation can be drawn between reasons that a certain age group opposes legalization and the messages presented during their time.  The Silent Generation who was coming of age during Reefer Madness opposes legalization because of the perceived violent nature of marijuana, while members of Gen X oppose legalization because of the perceived health risks presented by marijuana.  A relation to their exposure to the “Your Brain on Drugs” campaign during the ‘80s.

"Ten Nights in a Bar Room vs. Reefer Madness"

Finally, a video I edited to try and capture the essential themes and messages presented in both Reefer Madness and Ten Nights in a Bar Room.  The two films have been edited down to try and present only the biggest anti-marijuana/alcohol themes in the movies.  If fellow classmates would like a brief introduction to what marijuana education looked like in the ‘30s I would hope this properly captures and showcases the political climate at the time.